Verdict in Dutch The Pirate Bay Case: Nothing Gained or Lost

Yesterday, the Dutch online community was surprised by a verdict from a judge who declared that The Pirate Bay had to make itself unavailable in The Netherlands. This verdict was cast in a case the Dutch RIAA/MPAA-like organisation BREIN had started against The Pirate Bay. With it being a widely known and established fact that downloading copyrighted content off the internet – even if the upload was illegal – is not illegal in The Netherlands, where does this verdict come from? Is it truly a win for the entertainment industry, and a loss for Dutch consumers? Not really – the situation is much, much simpler than that.

BREIN vs. The Pirate Bay

We’ve talked about copyright in The Netherlands before, obviously because I’m Dutch myself. I’ve also often explained here on OSNews that there is no such thing as illegal downloading in The Netherlands, which obviously raises the question: on what grounds, then, did The Pirate Bay get banned from The Netherlands (with a fine of 30000 EUR for each day they remain open 10 days after the verdict)?

First, let’s establish, once more, that downloading of copyrighted content in The Netherlands is indeed legal – even if the upload was illegal. This is the law in The Netherlands, confirmed by several knowledgeable and respected lawyers, as well as in several statement by the Secretary of Justice (who also – very importantly – explained that is the way the law is supposed to function, so it’s not a loophole). There are also various court cases in which the judge confirmed this.

For years now, BREIN had been spreading misinformation about this, because they insisted downloading was illegal. Recently, they have changed their tune, and are indeed acknowledging that it is, in fact, not illegal. For instance, in this morning’s Algemeen Dagblad, Tim Kuik, BREIN’s director, said that “Downloading might be legal most of the time, uploading is not.” It’s fun to see that Dutch media outlets also finally dropped the “illegal” moniker when they are reporting about downloading.

So, if downloading is legal, why has The Pirate Bay been sentenced like this? As we all know, The Pirate Bay does not offer content – it merely points to it, in the same way Google can. Well, this is where it all gets a little bit ridiculous. The Pirate Bay has been sentenced by default [Dutch], in absence. The people behind Pirate Bay had been summoned to court by BREIN, but they did not show up, and as such, they did not defend themselves. In such a case, the judge will automatically accept all the charges made, and sentence you “by default”.

This raises another question: why did they not show up? This is a very interesting question, as many wonder if the court summoning by BREIN was legal. They summoned The Pirate Bay via – you in the back, don’t laugh – Twitter and Facebook, among other things. This raised a lot of eyebrows before the trial even started; is it legal to summon someone to court via Twitter and Facebook – someone from abroad? Well, the verdict states that apart from Twitter and Facebook, BREIN also sent the summons to the lawyer in the Swedish TPB case and to the TPB owners’ private home addresses as known by the Swedish local government (even though they don’t live there any more). The judge declared that this was enough.

Because the owners of TPB did not show up, several interesting questions remain unanswered, but for now, those questions will remain unanswered. Has TPB caused damages in The Netherlands? Is it okay to close off an entire site?

Peter Sunde of the The Pirate Bay has already announced that as soon as they find a lawyer willing to take on the case for free (they don’t have the money) they will appeal the decision. If they don’t, they will have to comply or pay up, as a Dutch verdict can easily be carried out in Sweden.

Conclusion

The end result of all this is that despite the gloom and doom Tweets, blog posts, and comments in The Netherlands, this verdict means absolutely nothing. TPB has been sentenced without an actual trial, by default, so the judge didn’t even handle the case. It’s not a legal endorsement for BREIN’s position.

BREIN, probably one of the most hated organisation in The Netherlands, and its front man, Tim Kuik, of course shouted this verdict off the rooftops, declaring a major victory. However, the reality is that nothing has been gained or lost yesterday. Downloading in The Netherlands is still legal – the way it should be. Copyright exists to protect advancements in the arts and sciences – not to fill the pockets of bloodsucking leeches like BREIN and Tim Kuik.

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30 Comments

I don’t fully agree. The judge ruled that the sentence should still be effectuated even if TPB changes owners or if they decide to appeal the verdict. So TPB is going black for us no matter what. This will fuel brein in their attempt to spread FUD among the Dutch.

So legally you may be correct, but in practice at least some damage has already been inflicted.

He might be technicly right if law is read like devil does bible. I actually read the Thoms ranting and regret spending few minutes on it after reading last part. BREIN is most hated organization in Netherlands??? In a country where there is a f–king pedophile party! And after reading Davids last post maybe site should be called OSRants.

Read again. That’s not what I said. What I said was that it is one of the most hated organisations. There’s a world of difference,

In a country where there is a f–king pedophile party!

There is? There are a bunch of mentally ill freaks who once tried to set up a a party – but they weren’t allowed to. They are Stichting Martijn, and yes, they’re a hated bunch too. Probably one of the most hated organisations.

– email to the defendants’ known e-mail address from which at least one of the defendants have replied in the past.

– The domain holder’s e-mail address

– A letter to the lawyers from the last court case.

– registered mail to each of the defendants addresses.

– a Twitter post

– a Facebook post

So I would say it is hardly likely that they were unaware of the case. This ruling may, and quite possibly will, get overturned once the defendants have someone show up in court. That does not mean the “let’s ignore it and hope it will go away” defense will work in the meantime.

They summoned The Pirate Bay via – you in the back, don’t laugh – Twitter and Facebook, among other things. This raised a lot of eyebrows before the trial even started; is it legal to summon someone to court via Twitter and Facebook – someone from abroad? Well, the verdict states that apart from Twitter and Facebook, BREIN also sent the summons to the lawyer in the Swedish TPB case and to the TPB owners’ private home addresses as known by the Swedish local government (even though they don’t live there any more). The judge declared that this was enough.

So the fact the they went through Swedish authorities, the Swedish baliff, as well as a known good email address was not important? The fact that when the official channels were tried and failed that Twitter and facebook were used as well is the critical piece of information? The fact that the registered mail was signed for is not pertinent? And the fact that the link sent in the summons was visited by an address that resolves to a pirate bay owned address is not important either? If you are going to report report the whole story, not just the parts you want.

I am simply asking that you report all of the facts rather than cherry picking the ones you like. I would expect that from torrentfreak but not osnews.

Again, you fail to read properly. I did not say the other attempts were not important. I just said that I listed the most important ones. That’s what a summary does: listing the most important parts of a story.

If you had basic comprehension skills, then you’d know that “the most important ones” does *not* mean the others are not important.

So let’s debate this. Twitter and Facebook are more important than the fact that the plaintiff first went through the proper authorities and sent an email to a known good address? The fact that the mail was registered is also not important? My reading comprehension is fine.

EDIT: A story that relies on a real news item for backing can summarize. When you write a stand alone piece you should try and include pertinent information. What you chose to list and what you chose to omit in this case is negligent. I have no love for *IAA or their European equivalents but report the facts.

The Twitter and Facebook summons were what made the news BEFORE the trial started – as clearly indicated in my article. BEFORE the trial started, it was thought that these were the only methods with which BREIN tried to summon TPB (obviously because these were public).

Now that the verdict is here, we can read that this was in fact wrong – they were summoned via more official and acceptable means as well, and of those, I listed the two most important ones – the exact same two ones as listed by the Dutch law & copyright expert Arnoud Engelfriet in HIS summary of the verdict. Now, I’m sorry, but I trust him more than some random commenter one the web.

Please, you’re making a fool out of yourself. I’m not the one for tinfoil hats, but your comments here are giving me the faint impression you might be liasioned to a RIAA/MPAA-like organisation.

The Twitter and Facebook summons were what made the news BEFORE the trial started – as clearly indicated in my article. BEFORE the trial started, it was thought that these were the only methods with which BREIN tried to summon TPB (obviously because these were public).

Now that the verdict is here, we can read that this was in fact wrong – they were summoned via more official and acceptable means as well, and of those, I listed the two most important ones – the exact same two ones as listed by the Dutch law & copyright expert Arnoud Engelfriet in HIS summary of the verdict. Now, I’m sorry, but I trust him more than some random commenter one the web.

Please, you’re making a fool out of yourself. I’m not the one for tinfoil hats, but your comments here are giving me the faint impression you might be liasioned to a RIAA/MPAA-like organisation.

Kokopelli is right. You made it sound like Facebook and Twitter were the main channels chosen by the lawyers to notify TPB, when indeed they were just a last resource after trying everything else.

The article is biased in other ways too as others have pointed (regarding what’s the most hated organisation in The Netherlands or how you suggest simplistically that TBP is good and BREIN is bad).

You have not only made these mistakes but you’ve been stubborn enough not to admit them and have even insulted readers like Kokopelli, who has worded his comments much more respectfully than you.

I visit this site almost daily and I used to respect your information and manners. I certainly expect you to apologise for this late behaviour.

If TPB wont be the old way of downloading and getting files why do we care? I dont care if it’s a paid service, in fact dont even post an article on that. TPB is gone. done deal.

Yall arguing over technicalities on a story that in itself has not made a major effect on the case that was being reported. So this will continue under one condition. Otherwise yall two can chill out with the back and forth.

If TPB wont be the old way of downloading and getting files why do we care? I dont care if it’s a paid service, in fact dont even post an article on that. TPB is gone. done deal.

Indeed, if you actually have to start paying for stuff you downloaded on the service, the TPB users will just move elsewhere.

As for being unaccessable to the Dutch, too bad this didn’t happen a long time ago… then we wouldn’t have had to deal with all the movies over the years that had hard-coded Dutch subs (I don’t even know WTF is up with that either.)

As for being unaccessable to the Dutch, too bad this didn’t happen a long time ago… then we wouldn’t have had to deal with all the movies over the years that had hard-coded Dutch subs (I don’t even know WTF is up with that either.)

Mmm, I’ve never seen that – although I only download television series. Maybe you’re confusing Dutch with German or Czech? I’ve seen a number of those.

Mmm, I’ve never seen that – although I only download television series. Maybe you’re confusing Dutch with German or Czech? I’ve seen a number of those.

Nope. For me, it’s pretty much always been Dutch subs… I can’t recall seeing any hard-coded subs in any other language.

I asked about this on a forum once, and was flamed for complaining about free stuff. But really, the question was academic in nature. I was just curious as to why somebody would go through the trouble of encoding a movie and uploading it for others to enjoy, and then make the subs hard-coded instead of making them optional, and why the Dutch seem to be the ones doing it consistently.

That’s a good question! I noticed that too, though never consciously noticed that most other languages don’t seem to do it that often . Maybe the (presumably Dutch) uploaders think all the (presumably Dutch) people who are going to be downloading it will be too stupid to get a separate subtitles file working correctly with the movie?

I wonder, if TPB is hosted in Sweden (I don’t really know, but lets assume it is), what does it mean that it must be unaccessible in the Netherlands, that they should close it there?

Are Dutch ISPs the ones responsible for “shutting” it down, for blocking the access, and the ones who will pay that fee if not?

I’ll put an example. Let’s say that guns are illegal in The Netherlands. And let’s suppose (it is not true, AFAIK) that they are legal in Sweden. So a Dutch citizen travels to Sweden and buys a gun in a shop. Can a Dutch court rule against this shop and ask it to close for Dutch citizens?

IOW, Dutch citizens are “traveling” (virtually) to Sweden to get their torrents. What The Netherlands can do it establish a control in the “frontier” to make sure they don’t return with these illegal(?) torrents. And that control must be carried out by the authorities with the help of the ISPs. TPB can’t be hold responsible for anything. If Dutch customers go there, there’s no reason why they should block them.

When Turkey blocks Youtube, the Turkish courts don’t rule that Youtube must block access to Turkish citizens or pay a few millions of $$ fee. That would be stupid. Same when China blocks many sites. It is their own responsibility, not the one from the site owners who are in another country.

Maybe the judge from this case doesn’t even know what the internet is and believes that TPB is actually in The Netherlands?

The judge simple hasn’t come to the point to establish wether TPB is active in the Netherlands. They didn’t show up, nor did someone representing them show up. Thus BREIN got all that they asked, it is as simple as that.

This is a verdict against the people behind TPB, not against ISP’s. ISP’s don’t need to do anything.

Next step is a swedish court confirming the verdict for Sweden. They will not look at the itself, just wether it matches the EU treaties for confirming verdicts of other member states. After that Swedish authorities will ensure the verdict is carried out.

Only solution for TPB is to appeal, show up, and defend themselves. They have plenty of possibilities: Not only downloading is legal, Kazaa was also ruled legal by the Supreme Court.

I seriously doubt the Dutch DA or the judge don’t know TPB is Swedish.

But other than that you raise an interesting point.

Take for example the Dutch softdrugs policy. This policy aims to reduce the abuse of softdrugs and its negative side-effects by regulating it instead of prohibiting it. Notwithstanding negative criticism by ignorant and/or uninformed people like Dr. Phil, our policy mostly succeeds in achieving its goals. Regulating drugs actually greatly reduces the appeal it has to many people and prevents side-effects by bringing everything out in the open.

There’s one glaring weakness in our policy though. It doesn’t work for people who are not from the Netherlands… By far most of the drugs related problems we have are coming from the French (at least in the south).

But I’m not here to discuss our liberal drugs policy. I mentioned it because the problem is very much similar to the point you raised. Obviously the coffeeshops (our legalised softdrugs PoS) are all located within the borders of the Netherlands. Question is, could we legally prevent foreigners from acquiring drugs in the Netherlands? Or better, could a French court prohibit Dutch coffeeshops to sell drugs to French people? I highly doubt it. All they can do is make try to make sure no-one has drugs on them when they cross the Belgian-French border. Even if we ourselves would want to do this (there are plans), I doubt it would be possible given that Lady Justice is blind and nobody is allowed to discriminate other (EU) citizens (freedom of travel, goods, work etc).

Same goes for the PB case: is it legal/constitutional to deny certain groups of people access to a service or good, without proving that each and every individual of the group is guilty as charged in a place where all people (including foreigners) are equal under the applicable law? Is it legal to do this on the basis of nationality? Can this be enforced by a foreign (Dutch) court? In my layman’s opinion Brein has to convince the court that the answer to all these questions is a definitive ‘yes’, if they want to enforce this.

So, if downloading is legal, why has The Pirate Bay been sentenced like this? As we all know, The Pirate Bay does not offer content – it merely points to it, in the same way Google can. Well, this is where it all gets a little bit ridiculous.

However, if i’m not mistaken, pointing to copyrighted content is not legal in The Netherlands.